Has Council missed the bus?

1 August 2018

The travelling public may think the Greater Wellington Regional Council has missed the bus when it comes to providing a reliable public transport system for the capital city.

However any change in contractor will have teething troubles. Now is the union's best chance to leverage on this and try get greater membership and a collective agreement.

Reports of flaws in the new system pour in. Drivers don't seem to know where they are going; it is said one paid a school student $5 to tell them where to go.

We hear of drivers struggling to keep to the timetable, missing stops, not following the correct route, and on and on it goes.

To be fair, the stories we hear are those of problems, not those of drivers who successfully negotiated their route on time.

Many new and inexperienced drivers have been employed by the new transport provider, Tranzit, after existing, experienced drivers would not accept longer hours of work for lower pay.

Legislation plays a role in bus contracts changing hands and a new bus system being established. Councils have an obligation to ensure they run services efficiently and economically. This is a positive thing.

One of the ways councils seek to deliver services efficiently is by seeking competitive tenders before entering into contracts.

This works as a safety valve for ratepayers, to ensure rates are not rising unnecessarily.

Competitive tenders also promote good use of public resources and prevent nepotism and corruption.

In deciding a tender, the council should look at cost but also the reputation of the tenderer and the quality of the service to be provided.

To secure contracts, operators put in a low tender. The risk is that the operator will then need to drive down wages unfairly and perhaps reduce services to operate at such a low cost.

When bus drivers would not accept work on the lower wage Tranzit offered them, the Ministry of Social Development helped Tranzit recruit unemployed people as drivers.

The Tramways Union, which represents many bus drivers, says this undermined its workers and their industrial action. The ministry has been criticised for undercutting the bus drivers and has admitted it played an "inappropriate role".

Sometimes the government protects those workers who stand to lose their jobs if contracts often change hands through tendering processes.

In 2004 the Labour government instituted a protection for vulnerable workers in sectors where the contractor frequently changed.

Often only some of the old workers were taken on and new workers were employed by the incoming contractor. Restructuring by the incoming contractor often follows.

The initial focus was large cleaning contracts in public hospitals, which traditionally tender their cleaning work to contractors.

Often a district health board is one of the largest employers in its region, so a huge number of cleaners were affected.

Many migrant workers carry out cleaning in hospitals where language skills and qualifications are not as critical as in other jobs. Because of this, workers had little bargaining power and could easily be replaced. Industrial action was difficult.

The new workers hired when the contract changed would be in the same union as those upset at losing their jobs and the new workers were happy to be employed.

The government passed legislation so if a contract changes, certain vulnerable workers have the right to transfer to the new contractor on the same terms and conditions.

The types of workers protected have expanded and now include cleaners and caterers in any place of work, along with launderers for education, health or age-related residential care sector.

Orderlies for health or age-related residential care institutions and caretakers in the education sector are also protected.

Should bus drivers be protected when contracts change? Or should people qualified to drive a bus and with language skills to communicate with passengers be reasonably able to find other employment if they are made redundant?

The line must be drawn somewhere.

An interesting Employment Court case shows the difficulty in ensuring vulnerable workers are adequately protected without covering others who are not so vulnerable.

John Matsuoka was employed by Pacific when LSG Sky Chefs took over the contract to make meals for airlines at Auckland.

Matsuoka claimed that he was entitled to transfer to LSG Sky Chefs. The company argued he was not vulnerable because he earned a $87,000 salary with other valuable benefits, had generous redundancy payments, and extensive accumulated holiday pay entitlements.

He also had authority to sign cheques and worked closely with Pacific's management.

The court held Matsuoka was entitled to transfer to the new company as the legislation does not require workers to be vulnerable or low-paid to be protected. The type of work done was key.

Bus drivers are clearly not protected when contracts change.

The drivers who didn't accept Tranzit's terms have been replaced. However it seems Tranzit's new workforce already has some appetite to bargain for better terms.

Drivers in the Hutt Valley are cutting their shifts to a standard eight-hour day after being made to work 14-hour shifts. This is one form of strike action.

Other methods are used around the world.

When workers on the Metro trains in Buenos Aires, Argentina, strike they continue to work but refuse fares from passengers. This strike method has also been used in Japan and Australia.

The travelling public are happy because they get where they want to go and do not have to pay. Meanwhile, the employer is put under economic pressure and hopefully motivated to negotiate.

The Greater Wellington Regional Council will be keeping a close watch on the Wellington buses. After all, they gave Tranzit the contract and will have to face the disgruntled voters at the end of the day.

The new Wellington bus system's teething problems may be partly due to many new drivers and should improve given time.

Assuming this happens relatively quickly, Tranzit's problems are unlikely to really impact the regional council members.

If this saga continues there might be appetite for change.

The union is already looking for change. It will want to negotiate better conditions while Tranzit is vulnerable and before the current terms and conditions are set in concrete.

The next month will be crucial but although problems are continuing it seems to me they are diminishing and the concrete is setting.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.